Church, State, and the Crisis in American Secularism

Bruce Ledewitz

Publication Year: 2011

Since 1947, the Supreme Court has promised government neutrality toward
religion, but in a nation whose motto is "In God We Trust" and which
pledges allegiance to "One Nation under God," the public square is
anything but neutral -- a paradox not lost on a rapidly secularizing America and a
point of contention among those who identify all expressions of religion by
government as threats to a free society. Yeshiva student turned secularist, Bruce
Ledewitz seeks common ground for believers and nonbelievers regarding the law of
church and state. He argues that allowing government to promote higher law values
through the use of religious imagery would resolve the current impasse in the
interpretation of the Establishment Clause. It would offer secularism an escape from
its current tendency toward relativism in its dismissal of all that religion
represents and encourage a deepening of the expression of meaning in the public
square without compromising secular conceptions of government.

Cover

Contents

Preface

... The 2004 presidential election demonstrated to me that American
politics and law were not consistent with reality. In politics, while we
were giving lip service to the idea that we had a secular government,
anyone could see that our elections were characterized by religiously
oriented voting. In law, the doctrine of government neutrality toward
religion dominated judicial opinions, but the actual outcomes of cases
were inconsistent with any such rule. ...

Acknowledgments

In the two books that preceded this one, I thanked my friends and family
and acknowledged my intellectual debts. None of that needs to be
repeated, with one exception: I must once again thank my friend and
colleague of thirty years, Robert Taylor. Robert and I have studied together
throughout most of that time. Like Socrates, Robert does not like
to write and, again like Socrates, he succeeds in imparting the wisdom
of how little we know. ...

Introduction

... Nor is there basic agreement
among the justices on the United States Supreme Court as to the
permissible role of religion. There are details that are shared, such as the
anti-coercion principle, but there is not agreement as to foundations.
The key question—whether we are to have a genuinely secular government—
has not been answered. The gap between the Court’s pronouncements,
on the one hand, and social reality, on the other, is perhaps best
symbolized ...

PART 1. THE ESTABLISHMENT CLAUSE CRISIS

1 What We Say: The Supreme Court’s Promise of Government Neutrality toward Religion

The crisis in interpreting the Establishment Clause lies in the gap between
what the United States Supreme Court has written that the Constitution
demands—what we say—and what American society actually
does. The Court has promised government neutrality toward religion;
but our practices suggest something quite different. Neutrality has a
variety of meanings, as we shall see, but all of its meanings ...

2 What We Do: The Failure of the Supreme Court to Redeem the Promise of Government Neutrality

Three years before Everson was decided, there was a dramatic manifestation of a nation in an open relationship to religion in the public sphere. On June 6, 1944, President Franklin Delano Roosevelt addressed the nation on the occasion of the D-Day landings in Normandy. He spoke for only a few minutes. He asked the nation to join him in prayer. ...

3 Why Only the People and Not History Can Resolve the Establishment Clause Crisis

The Establishment Clause crisis consists of the gap between what we say
in constitutional law about government neutrality toward religion, on
the one hand, and the obvious endorsement of religion by government in
practice. In effect, the crisis reflects an inability to choose between the alternatives
that Ronald Dworkin starkly sets forth: a secular society tolerant
of religion or a religious society tolerant of nonbelief. In part 2 of this
book, I will propose the higher law ...

4 Proposals That Have Failed to Resolve the Establishment Clause Crisis

I wrote in the last chapter that the Supreme Court’s job is to state the obvious.
In the context of church and state, this means giving a principled
account of the meaning of the Establishment Clause. The Court’s job is
to determine what the Establishment Clause means so the people may
ultimately render their own judgment. ...

PART 2. USING GOVERNMENT SPEECH AND HIGHER LAW TO RESOLVE THE ESTABLISHMENT CLAUSE CRISIS

5 The Establishment of Higher Law

The last chapter ended at the limits of Establishment Clause jurisprudence.
The current law of the Establishment Clause allows wide-ranging
use of God-language in government displays, creeds, and events, at least
outside of special contexts, like schools, in which coercion is a particular
concern. ...

6 Using Religious Symbols to Establish Higher Law

Government’s use of religious symbols is a very different issue than government
endorsement of higher law. The Pledge of Allegiance says “one
Nation under God,” not “one Nation under the Essential Unity of All
Things.” If the Pledge said the latter, not many people, and certainly no
judges, would call it unconstitutional as a violation of the Establishment
Clause. ...

7 Applying Higher Law in Church/State Issues

Up to this point, I have treated the Establishment Clause as if symbolic
government expressions, such as the Pledge of Allegiance, the national
motto, and displays of the Ten Commandments, were the only issues
that appear. But such cases are only a part of the history of litigation
under the religion clauses of the Constitution. What about the rest ...

PART 3. USING THE HIGHER LAW ESTABLISHMENT CLAUSE TO SAVE SECULARISM

8 The Failure of Secularism under the New Atheism

There are two forms of secularism in America, or at least there are two
tendencies moving toward two ideal types. These two tendencies begin
from the same secular starting point: natural laws identified by science
are invariant; miracles, or any other supernatural interventions in the
world, are impossible in principle. It is this rejection ...

9 The New New Secularism and the Higher Law

Where does the term “new New Secularists” come from? It comes from
a somewhat altered term in a newspaper column. Peter Steinfels, a professor
at Fordham University and co-director of the Fordham Center
on Religion and Culture, writes a biweekly column, called “Beliefs,”
for the New York Times. In a February 2009 column entitled ...

10 Is God a Universal Symbol?

Secularists will be surprised to hear that America is much closer to
resolving at least a part of its religious culture wars than they might
have thought. Despite all of the concern about Christian nationalism
and the undoubted desire of a substantial number of Americans that
Christianity be recognized as America’s official religion, in fact if not
in name, the Supreme Court has been quite clear that the government
may not endorse any one ...

11 The New Politics of Higher Law Secularism

Could America ever produce a dominant progressive political coalition?
Maybe I should say, reproduce such a coalition, since we may have had
such a coalition of forces during the early years of FDR. But we don’t
have such a coalition now, as witnessed by the simple fact that during the
debate over healthcare reform, a single-payer system was never a serious
possibility. ...

Conclusion: Perfecting Democracy

... He claimed that some secularists believe that religion must be
removed from the public square in order to safeguard democracy. To the
extent that religion must be privatized, however, it is clear that ordinary
democratic processes are unlikely to accomplish the goal. Americans
are much too religious for that. ...

Welcome to Project MUSE

Use the simple Search box at the top of the page or the Advanced Search linked from the top of the page to find book and journal content. Refine results with the filtering options on the left side of the Advanced Search page or on your search results page. Click the Browse box to see a selection of books and journals by: Research Area, Titles A-Z, Publisher, Books only, or Journals only.